PINOCHET AND THE LAW

The writer expresses the hope that Pinochet will be extradited to Spain to stand trial, so that justice can begin to be served for the surviving victims in Chile, and so that the international human rights law system can be strengthened.

By Grahame Russell

25 November 1998 will hopefully be remembered as a bad day for dictators and other systematic violators of political and civil rights. The highest court in England, the House of Lords, ruled that General Pinochet, former military ruler of Chile, did not (on the basis that he was a former head of state) enjoy immunity from prosecution for crimes against humanity committed in Chile in the 1970s and 1980s.

For human rights activists and non-government organisations (NGOs), 25 November was a bittersweet day. This first measure of decades-delayed justice pales in comparison with the enormity of the violations that Pinochet's US-backed regime systematically committed in Chile: rape, torture, murder, massacres, disappearances, etc.

Legally, 25 November was a good day, because what admittedly should have been a routine legal decision - in a world governed, let us say, by the rule of law - is actually unprecedented. The House of Lords ruled that there is no immunity from prosecution for former heads of state, and other state agents and officials, for the commission of crimes against humanity.

Until now, Pinochet, and thousands of government and military officials and related agents from across Latin America, have benefited from close-to-complete impunity for their crimes, not only in their own countries but abroad as well.

Many of these human rights violators own property or control hefty bank accounts in North America and Europe. During and after their reigns of repression, they have travelled freely abroad, often enjoying privileged diplomatic status and living off the spoils of the repression they designed and implemented.

Many Western nations - particularly the US - actively supported these regimes with weaponry, training and substantial financial aid. The World Bank, the International Monetary Fund, and many transnational banks and companies empowered these regimes and - at the same time - profited from financial and commercial dealings with them.

Concerns expressed

Even before the ink had dried on the decision, concerns were expressed about the impact of the House of Lords' ruling.

These concerns were not expressed by human rights NGOs, or surviving family members of victims of political and civil rights violations, but rather by powerful political and economic interests that have often aided and abetted, let alone profited and benefited from, the repression in the past.

Inside Chile, Pinochet supporters - and others - argue that the possible Spanish trial of Pinochet, for murder, torture, disappearances, rape, and genocide, would threaten Chile's democracy, as tension and strife mounts between pro-immunity and pro-justice sectors of the Chilean society.

Yet, justice delayed or denied, is impunity entrenched and enjoyed. We are not talking about unpaid speeding tickets or jay-walking violations. These were gross violations of political and civil rights committed by certain people and sectors of the Chilean society (and indirectly by the US) against other people. These are horrendous political crimes that have been largely covered up, until now, by impunity and fabricated legal immunity.

While democracy and the rule of law can remain entrenched in a society if unpaid tickets of jay-walking citations are ignored, they cannot entrench themselves, in Chile or anywhere, when horrendous crimes of the past are blatantly covered up, and when the guilty parties - who often profited handsomely from the repression - live freely and openly in the same society.

Some measure of public and real legal justice must be done. Pinochet's detention and possible extradition to Spain can only strengthen Chile's democracy, as some of the pending issues of impunity and justice delayed are confronted.

In the US, concern has been expressed that this ruling will result in the bringing of frivolous criminal suits against American military, secret service and government agents for alleged direct or indirect commission of gross political and civil rights violations.

This is nonsense. A healthy legal system - nationally or internationally - usually does not allow frivolous law suits to proceed to trial.

The real concern of powerful political and military interests in the US is that criminal or civil proceedings may be brought against political and military officials who committed gross political and civil rights violations, or knowingly aided and abetted in the commission of the same. Alfred Rubin, a professor (apparently) of international law at Fletcher School of Law and Diplomacy, is 'troubled' by how international law reaches across borders. 'What's to stop Spain from extraditing Henry Kissinger, who was involved in the coup,' he asks.

But if Rubin does believe in democracy, the rule of law and human rights, why would he object to extraditing Kissinger and trying him for crimes against humanity, if indeed Kissinger committed or knowingly contributed to the commission of such crimes?

Pinochet's detention brings media attention (albeit mostly timid in the US) and possible political pressure to bear on the fact that US government and military officials, at the highest levels, have knowingly provided weapons, training and financial support for, let alone sometimes participating directly in some of the worst violations of political and civil rights worldwide.

Another complaint is that an English court is intervening in the internal affairs of Chile. Former Prime Minister Margaret Thatcher argues that 'it is not for Spain or Britain ... to interfere in what is an internal matter for Chile.'

This view is wrong. International law - accepted by Spain, Britain, the US, Chile, etc. - clearly states that the commission of crimes against humanity is not an 'internal matter'; it is by definition an international matter. Persons can and must be tried and held individually responsible - in whatever nation they be found - for the commission of crimes against humanity.

Calling all lawyers!

This ruling provides the human rights movement worldwide with more legal and political space to seek legal recourse, nationally and internationally, for gross violations of political and civil rights.

Direct collaboration between human rights lawyers and NGOs and CEOs worldwide should increase, setting up warning systems for when alleged systematic violators of political and civil rights are travelling to another country, and then filing criminal and/or civil proceedings against them.

Pinochet's lucky day

Hopefully Pinochet will be extradited to Spain to stand trial, so that justice can begin to be served for the surviving victims in Chile, and so that the international human rights law system can be strengthened. They who claim that legal justice will be done if Pinochet is returned to Chile are naive or misleading.

Whether in favour of trying Pinochet or not, we all should be grateful for the Universal Declaration of Human Rights and other international human rights standards. Pinochet and his supporters should be thankful that he was legally detained (with a judicial detention order, of all things); that the charges against him are not frivolous or trumped up; that he has not been tortured; that he has full access to lawyers and a proper defence; that he is not languishing 'incommunicado' in a filthy clandestine prison; and that his body has not been found floating down river from Santiago, weeks after he was 'disappeared'. - Third World Network Features

About the writer: Grahame Russell is an international human rights lawyer, manos@igc.apc.org ; tel: (USA) 202-783-1123.

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